Carpenter v. United States and the Emerging Expectation of Privacy in Data Comprehensiveness Applied to Browsing History

* Note & Comment Editor, American University Law Review, Volume 69; J.D. Candidate, May 2020, American University Washington College of Law; B.A., International and Global Studies, 2017, University of Central Florida. I would like to thank Professor Jennifer Daskal for fostering my interest in privacy law and for advising my Comment. I am grateful for Andrew Urueta’s guidance throughout the Comment process and for the Law Review staff’s diligent edits and contributions. I owe so much to my family and friends whose encouragement propelled this piece. Finally, a special thank you to my parents for their unconditional love and for always supporting my passions.

The third-party doctrine has transcended the shift from analog to digital technology. Despite judicial cautions that the doctrine is unfit for the digital age, it persists as one of privacy’s greatest limitations. However, in Carpenter v. United States, the Supreme Court significantly circumscribed the third-party doctrine. Although the Court explicitly limited its holding to historical cell-site location information, Carpenterpaves the way for enhancing expectations of privacy in many types of data.

This Comment argues that Carpenter applies to browsing history collected by third-party cookies; therefore, individuals have a reasonable expectation of privacy in their browsing history that is unabridged by the third-party doctrine. Like historical cell-site location information, browsing history collected by third-party cookies is comprehensively detailed and collected involuntarily and pervasively. In arguing that Carpenterapplies beyond the Court’s feeble restraints, this Comment derives an emerging expectation of privacy in the comprehensiveness of data from the Court’s repeated focus on how granular data can reveal personal information. An expectation of privacy that turns on the comprehensiveness of data offers new grounds to strengthen privacy online and in the digital age.